Kumaresan vs The Commissioner Hindu Religious and Charitable Endowment Board and Others <BR>P. Harikrishnan Managing Trustee Arulmigu Eswari Padhra Kaliamman Temple Vs The Assistant Commissioner Hindu Religious Charitable Endowment Administration Department and The Executive Officer A/m. Isakki Amman Thirukoil Muppandal

K. Chandru, J.—Heard both sides and perused the records.

When W.P.(MD). No. 8496 of 2008 came up before the Principal Bench, it was ordered to get permission from the Hon''ble Chief Justice to

transfer the writ petition to be tried along with W.P.1273 of 2006. The Hon''ble Chief Justice, by an order dated 15.07.2008 directed the transfer

of the matter pending before Principal Bench to be heard along with W.P.(MD).1273 of 2006. Thus, they were grouped together and a common

order is being passed.

In W.P.1273 of 2006, the prayer of the petitioner is to set aside the order passed by the Assistant Commissioner HR&CE Board, Nagercoil

dated 18.01.2006 by which the Executive Officer of Arulmighu Isakki Amman Thirukoil Muppandal, Thovalai Taluk was appointed as a Thakkar

(Fit person) for the Arulmighu Eswari Badhra Kaliamman Temple, in Agatheeswaram Taluk under the HR&CE Act 1959 as amended by

amending Act 39/96.

It was stated that the Thakkar was continue to maintain the temple until trustees for the temple are appointed in accordance with law. The

petitioner was directed to hand over the charge of the temple to the Thakkar appointed by the first respondent.

Pending the writ petition, though an interim stay was granted on 11.02.2006, subsequently, when a vacate stay application was filed by the

second respondent Executive Officer in M.P.1 of 2006, the same was dismissed by this Court, by an order dated, 05.01.2007. In the mean while

one Balachandran S/o. Sri Krishna Nadar filed an application to implead himself and also filed a vacate stay petition in the writ petition. Those

miscellaneous petitions were dismissed as withdrawn by this Court. Subsequently, one C. Velmurguan S/o. Chidambardar wanted to get himself

impleaded. But, however, only notice was ordered and no final orders were passed in that M.P.

In the mean while, one Kumaresan S/o. Kumaravel Nadar filed a writ petition being W.P. No. 8496 of 2006. When that came up for

admission, the learned Counsel for the fifth respondent, Mr. P. Harikrishnan (W.P. No. 1273 of 2006) took notice. On behalf of the first and

second respondents Mr. D. Sasikumar, learned Govt.Advocate took notice for the official respondents. In the mean while, the petitioner gave up

third, fourth, sixth and seventh respondents. Accordingly, the writ petition as against them was dismissed as not pressed. The official respondents

have filed a counter affidavit dated 31.01.2007 in W.P. No. 1273 of 2006. The fifth respondent has filed a counter affidavit dated 21.08.2008 in

W.P.8496 of 2008.

The prayer in W.P. No. 8496 of 2008 is to take over the administration of Shri Eswari Badra Kaliamman Temple at Esanthangu Village by the

Department. It is stated by the Assistant Commissioner, Nagercoil that the petitioner P. Harikrishnan is not a hereditary trustee of the said temple

and on 06.02.2006, the Executive Officer took over the administration of the temple in the presence of the villagers and that fact was suppressed

in this writ petition. It was also stated that on 28.11.2003, the writ petitioner P. Harikrishnan gifted a piece of land belonging to the temple to the

Executive Officer of the Ganapthipuram Panchayat. The gift deed was registered as document No. 3325/2003 in Sub-Registrar''s Office at

Rajakamangalam. Even though in the document, the petitioner described himself as an adhoc President of the temple, there was no proof. Shri

Eswari Badra Kaliamman Temple was a public religious institution under HR&CE Act 22/59. As against the said order, one Ammathiyan Nadar

and four others filed an application before Deputy Commissioner, HR&CE in O.A.61/63. The said O.A. was 24.09.1966 and the temple was

declared as a public temple. This was also, on appeal, confirmed by the Commissioner HR&CE Department.

As against that order, a statutory suit was filed in the Sub-court, Nagercoil, being O.S. No. 37/1971. In the suit, the Commissioner, HR&CE

was made as the 6th respondent. But, however, the suit against the 6th defendant was dismissed by the Sub-Judge, Nagercoil on 30.04.1975. It

transpires after getting the suit dismissed against the Commissioner, a compromise memo was entered into between the parties. Thereafter, the

petitioner was trying to take advantage of the compromise decree and was trying to contend that the temple was a private temple and that decree

is binding on every one.

Thereafter, the petitioner''s father and some villagers filed O.A.23/67 to declare themselves as hereditary trustees and the said O.A. was

dismissed. The appeal against the said order being A.P. No. 53/74 was also dismissed by the Commissioner of HR&CE dated 31.07.1975. In

fact when a subsequent suit was filed in O.S. No. 62/98, the department consistently took the plea that it was a public temple and the properties

are in the name of deities and the commissioner was legally competent to demand and collect contribution and audit fee for the temple. Even in the

O.S. No. 37/1971, the petitioner''s father, who was examined had admitted that the officials of the HR&CE Department came to the temple and

opened the Hundiyals. However, due to the stand taken by the petitioner, there was a law and order problem in the village and this necessitated

the Executive Magistrate to initiate proceedings u/s 145 Cr.P.C.

It was also stated that the petitioner suppressed the pendency of W.P. No. 8675 of 2004 before this Court and various criminal proceedings

pending in Courts and the petitioner had not disclosed this matter. But , it is now informed that W.P.8675 of 2004 was dismissed as abated. In

para 11 of the counter affidavit, it is averred as follows:

I submit that the Temple has got lot of properties. Two Annual Festivals namely Thiru Karthigai, Panguni Perungudai are being conducted in

the Temple. For these two festivals special buses are being arranged by the District Administration from various parts of District to this Temple,

since large number of people will come and attend the festivals, all over the district during these two festivals. The Hundial collections will be more

than Rs. 3 Lakhs on each of this festival. Apart from Hundial collections Gold and Silver articles will also be offered to the deitees. Apart from this,

monthly collection is more than Rs. 1/- Laksh. All these collection are being misappropriated by the petitioner and his family members.

In the suit filed in O.S. No. 37/1971 the learned sub-judge, Nagercoil, by judgment, dated 30.04.1975, in paragraph 20 rendered a clear

finding, which is as follows:

20.Therefore, it has to be held that the plaintiffs failed to prove that the order of the Commissioner H.R.&C.E. Board Madras is A.P.47 of 1967 is

erroneous and that the same is liable to be set aside. The plaintiffs failed to prove that the suit temple constitute a private trust and that it was

founded by the plaintiffs ancestor and accordingly issued 1,3 and 7 are answered against the plaintiffs.

But, however, the writ petitioner P. Harikrishnan cleverly filed some other suit before the District Munsif, Nagercoil to declare the Arasadi

Vinayagar Temple as a subsidiary temple of Shri Eswari Badra Kaliamman Temple. In the judgment rendered in the suit, the trial Court had found

that the petitioner and five others are in the Management of the Temple. The respondents therein have moved this Court in S.A.668 of 2002 and it

is pending. All this exercise in futility was made by the petitioner. He cannot by relying upon a compromise order in which the department was

given up as a party and thereafter, filed suits on some other issues and try to get a finding as if he is to the management of the temple and that it is a

private temple. His argument do not advance cause of the petitioner. But on the contrary, his role in the Management of temple is brought under

cloud.

Mr. S.S. Sundar, learned Counsel for the petitioner finally submitted that his clients have not been given any notice before the appointment of

any fit person u/s 45(1) of the HR&CE Act. Since no notice was given, the impugned order is liable to be set aside. In this connection, the learned

Counsel relied upon a Division Bench judgment in N. Sivasubramanian v. The Government of Tamil Nadu and Ors. reported in 2007 1 L.W.72

and referred to para:12 of the judgment, which is as follows:

12.As pointed out above, no doubt the second respondent is empowered to appoint Executive Officer u/s 45(1) of the Act. But to exercise the

said power, there must be a maladministration by the trustees and to find out whether there is any maladministration or not, it is the duty of the

second respondent to issue notice to the trustees, hear their objections and only after prima facie satisfaction of the maladministration, the second

respondent is empowered to exercise the power u/s 45(1) of the Act and appoint the Executive Officer.

For the very same proposition, he relied upon the following judgments:

(i)In D.R. Nagarajan Vs. The Commissioner, Hindu Religious and Charitable Endowments (Admn.) Department, .

(ii)In K. Ekambaram and Anr. v. The Commissioner reported in 1995 2 L.W.213.

(iii)In R. Krishnan Hereditary Trustee A/m Maha Kalimamman Thirukoil Korayatrangarai v. The Commissioner Hindu Religious and Endowment

Department Uthamar Gandhi Sale Chennai and Anr. reported in 2004 1 L.W.382.

Thereafter, the learned Counsel submitted that the term ""hereditary trustee"" is defined in Section 6(11) of the Tamil Nadu HR&CE Act means

the trustee of a religious institution, the succession to whose office of devolves by hereditary right or is regulated by usage or is specifically

provided for by the founder, so long as such scheme of succession. He further submitted that the petitioner has a right to be in office through

succession by usage.

For this proposition, he relied upon a Division Bench of this Court in S. Subramania Pillai v. Velinintra Vinayagar and Ors. reported in 1981 2

MLJ 77 . He also relied upon the judgment of this Court in The Deputy Commissioner for Hindu Religious and Charitable Endowment Board and

Others Vs. K. Sidhdhivinayaga Mudaliar, for the proposition that in a case where by usage if a person becomes the Nattamaikarar of the

community, ipso facto, he becomes of the Hereditary Trustee of the denomination of the temple and this was recognised in the case referred to

above. In that judgment the Division Bench also quoted in para:14 of the said judgment, from a text book written by N.R. Raghavachariar, which

is as follows:

Though usage and custom are often used as convertible terms, the antiquity, the uniformity and the notoriety which are required in the case of a

custom are not necessary in proving a valid usage. It is sufficient if it is shown that the usage is so well known and acquiesced in that it may be

reasonably presumed to have been tacitly imported by the parties into their transactions.

At the same time, one can refer to another Division Bench judgment of this Court reported in 1964 MLJ 230, in Kodi P.Muthirala Pillai v. G.

Thyagarajaswami Pillai and Ors. wherein the Division Bench held that mere management of a temple will not confer any hereditary trusteeship and

the following passage may be usefully extracted hereunder:

...But if they, for the purpose of convenient management, elected one from amongst themselves as a trustee, it must have been only to facilitate the

management of the temple and its properties. Such election by itself cannot confer any exclusive right of trusteeship much less a hereditary right to

trusteeship. Indeed, it would really be the other way about. The appellant, by virtue of this election, can hold office only under the rights created by

such election, and that cannot be regarded as in any way creating a hereditary right.

Thereafter, the learned Counsel relied upon the proposition that the Deputy Commissioner under the Act cannot decide the trusteeship of the

temple, as to whether if hereditary or not. Reliance was placed upon the judgment in The Commissioner, Hindu Religious and Charitable

Endowments Vs. Vaithinatha Gurukkal and Others, . He pressed into service the following passage:

Under Section 57(b) of the Madras Hindu Religious and Charitable Endowments Act of 1951 or 63(b) of the Act of 1959, the Deputy

Commissioner is empowered to decide whether the trusteeship in relation to a religious institution was hereditary or not and not to decide whether

a particular person was entitled to function as a hereditary trustee at a particular point of time, with reference to a temple, the hereditary nature of

the trusteeship of which had been admitted.

For the very same proposition, he pressed into service of another judgment of this Court reported in Aviyur Mariamman Temple by Hereditary

Trustee Parasuraman Vs. T.N. Sundaramoorthi Pillai and Another, .

It is not clear as to how the cases referred to above will help the case of the petitioner. In this case, the petitioner''s father suffered a decree in

the Civil Court, which held that the temple is the public temple and not denominational or owned by any group of families. The compromise memo

entered into between two rival groups will not bind the HR&CE department. Further, the case filed by the petitioner''s father along with some other

persons regarding the declaration of a sub-temple, he cannot get any declaration that he is a hereditary trustee of the temple and was also managing

the temple. There is no order by the department in any of the previous proceedings recognising such right in favour of the petitioner. On the other

hand, the petitioner father himself had admitted that the opening of hundiyals by the officials of the HR&CE department on earlier occasions.

In the counter affidavit filed by the Department, serious allegations were made against the petitioner about the financial irregularities. Serious

law and order problems has also been created for the invocation of Section 145 of Cr.P.C by the Executive Magistrate. W.P. No. 8496 of 2008

is seeking for the direction to take over the temple. In the absence of petitioner producing any credible materials to show that he was a hereditary

trustee, the question of issuing any notice to him does not arise. In effect, unless the petitioner shows that he is the hereditary trustee invocation of

infringement of Section 45(1) does not arise.

Therefore, the writ petition filed by P. Harikrishnan in the capacity of the Managing Trustee of temple must fail.

After the arguments were concluded and the order was reserved on 25.08.2008, it was informed that the writ petitioner in W.P.8496 of 2008

had passed away on 28.08.2008 and therefore, the writ petition is abated. But the Supreme Court after referring to Order XXII Rule 6 CPC held

that if death of either party takes place between the conclusion of the hearing and pronouncement of the judgment, the judgment in those cases may

be pronounced notwithstanding the death and it shall have the same as if it had been pronounced before the death had taken place (See Ram Sakal

Singh Vs. Mosamat Monako Devi (Dead) and Others, ).

In view of the above, W.P. No. 1273 of 2006 will stand dismissed and W.P. No. 8496 of 2008 stands allowed. However, there is no order

as to costs. Consequently, connected M.P. is closed. No costs.